Citation Nr: 1125056
Decision Date: 07/01/11 Archive Date: 07/14/11
DOCKET NO. 06-11 826 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas
THE ISSUES
1. Entitlement to an effective date earlier than October 18, 2004 for the grant of entitlement to nonservice-connected (NSC) pension benefits.
2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for radiation exposure.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J.M. Rutkin, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1974 to July 1976.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which, in pertinent part, granted entitlement to NSC pension benefits with an effective date of October 18, 2004, and denied entitlement to service connection for radiation exposure.
In the Veteran's March 2006 substantive appeal (VA Form 9), the Veteran requested to testify at a hearing before the Board. A hearing was scheduled for April 2007 and then rescheduled at the Veteran's request for February 2008. The Veteran was notified of this hearing in a December 2007 letter. The Veteran did not appear for this hearing and has not given a reason for his failure to appear or requested that the hearing be rescheduled. Accordingly, the Board will proceed with appellate review. See 38 C.F.R. § 20.704(d) (2010) (providing that failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn).
This claim was remanded by the Board in November 2007. It now returns for appellate review.
In the Veteran's March 2006 substantive appeal, the Veteran stated that he suffered from headaches, hair loss, and loss of teeth. Claims of entitlement to service connection for these disabilities were previously denied in an October 1995 rating decision. Reference to these disabilities in the March 2006 substantive appeal indicates that the Veteran wishes to reopen these claims. As the Veteran's petitions to reopen have not yet been adjudicated by the agency of original jurisdiction (AOJ), the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action.
FINDINGS OF FACT
1. The October 1995 rating decision denied the Veteran's claim of entitlement to NSC pension benefits; he was informed of the decision and his appellate rights in an October 1995 letter; he did not appeal, and the decision became final.
2. The Veteran submitted a new claim for NSC pension benefits on October 18, 2004; the March 2005 rating decision granted NSC pension benefits effective October 18, 2004, the date of the Veteran's claim.
3. The evidence of record does not show that the Veteran filed a new claim for NSC pension prior to October 18, 2004, or that he was incapable of filing a disability pension claim for at least 30 days following the date on which he became permanently and totally disabled and within one year of the October 18, 2004 claim.
4. The October 1995 rating decision denied the Veteran's claim of entitlement to service connection for radiation exposure; he was informed of the decision and his appellate rights in an October 1995 letter; he did not perfect an appeal, and the decision became final.
5. Additional evidence received since the October 2005 rating decision is new to the claims file, but does not relate to an unestablished fact necessary to substantiate the claim of whether the Veteran has a disability resulting from alleged radiation exposure during active service.
CONCLUSIONS OF LAW
1. The criteria for an effective date prior to October 18, 2004 for the grant of NSC pension benefits have not been met. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.1103 (2010).
2. The October 1995 rating decision, denying service connection for radiation exposure is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010).
3. New and material evidence has not been received to reopen the claim of entitlement to service connection for radiation exposure; the claim is not reopened. 38 U.S.C.A. §§ 1110, 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.303, 3.304, 3.307, 3.309, 3.311 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id.
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id.
I. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the context of a petition to reopen, the claimant must be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). All notice should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. at 486.
Here, with respect to the Veteran's appeal of the effective date of the award of NSC pension benefits, the Board notes that this appeal arises from a grant of such benefits. Once entitlement to the underlying claim is granted, further notice as to "downstream" questions such as the effective date is not required. See Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Thus, the Board finds that the duty to notify has been satisfied and that further notice is not warranted. See id.
With respect to the Veteran's claim of entitlement to service connection for radiation exposure, a November 2004 letter sent prior to the initial rating decision in this matter informed the Veteran of the first three elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. It also provided notice of the elements of new and material evidence and the reasons for the prior October 1995 denial as required by Kent. Since the Board has concluded that reopening is not warranted, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes assisting him in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id.
The Board concludes that the duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claims. The Board concludes that the duty to assist has been satisfied with respect to obtaining relevant evidence on the Veteran's behalf. See 38 C.F.R. § 3.159(c).
The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate, or explain why an adequate VA examination is not warranted. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
With respect to the Veteran's appeal of the effective date of NSC pension benefits, this is an issue which is wholly a matter of interpretation of pertinent statute and regulatory provisions. The Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). Further, there is no indication that a VA examination would aid the Board in deciding whether the criteria for entitlement to an earlier effective date have been met. Accordingly, a VA examination is not warranted as to this issue.
With respect to the Veteran's petition to reopen his claim for radiation exposure, the duty to assist does not include provision of a medical examination or opinion unless new and material evidence has been secured to reopen a previously denied claim and VA finds that an examination is warranted. See 38 C.F.R. § 3.159 (c)(4)(iii). As will be discussed below, the Board concludes that new and material evidence has not been submitted to reopen this claim and thus there is no duty to provide an examination. The Board also notes that a general VA examination was provided in March 2005 which does not make any findings with respect to the Veteran's alleged radiation exposure or reflect any disabilities which may have resulted from such exposure. Indeed, the VA examiner, who reviewed the claims file and examined the Veteran, concluded that none of the health problems found on examination or reported by the Veteran were related to service. Because the Board finds that new and material evidence has not been received to reopen the Veteran's claim for radiation exposure, the adequacy of examination is moot and further examination is not warranted. See id.; see also Barr, 21 Vet. App. at 312; Woehlaert v. Nicholson, 21 Vet App 456, 463-64 (2007).
As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield, 19 Vet. App. at 115.
II. Procedural Due Process
The Board remanded this claim in November 2007 to afford the Veteran another opportunity to testify at a hearing before the Board. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
Here, the Veteran was schedule for a Board hearing to be held on February 29, 2008. The Veteran was notified of this hearing in a December 2007 letter. The Veteran did not appear for this hearing and has not given a reason for his failure to appear or requested that the hearing be rescheduled. The Board finds that there has been substantial compliance with its November 2007 remand directive and that further action is not warranted. The Board will proceed with appellate review.
III. Effective Date
The Veteran claims entitlement to an effective date earlier than October 18, 2004 for NSC pension benefits. For the reasons that follow, the Board finds that an earlier effective date is not warranted.
Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.
An award of disability pension may not be effective prior to the date entitlement arose. 38 C.F.R. § 3.400(b). For claims received on or after October 1, 1984, the effective date of an award of disability pension is the date of receipt of claim. Id. If within one year from the date on which the veteran became permanently and totally disabled, he files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of his willful misconduct, was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which he became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which he became permanently and totally disabled, whichever is to his advantage. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented filing the claim. Id. § 3.400(b)(1)(ii)(B).
The effective date of an award based on a claim reopened after final adjudication is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2); see also 38 U.S.C.A. § 5110(a).
A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claims must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a).
A rating decision becomes final if the Veteran does not timely perfect an appeal of the decision. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200, 20.302, 20.1103. Where there has been a prior final denial, the award of VA benefits may not be effective earlier than the date VA received the particular application for which the benefits were granted. Washington v. Gober, 10 Vet. App. 391 (1997). There are only two exceptions to the rule of finality of VA decisions, namely challenges based on clear and unmistakable error (CUE) in a prior, final decision (38 U.S.C.A. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C.A. § 5108). See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). However, because the proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, only a request for revision based on CUE may result in the assignment of an earlier effective date for the veteran's awards. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for an earlier effective date as to a previous final decision is not authorized by law).
The Veteran argues that the effective date of NSC pension benefits should be in May 1995, the date of a prior claim for NSC pension benefits. However, the Board finds that this prior claim was the subject of a final rating decision which the Veteran did not appeal. Specifically, entitlement to NSC pension benefits was denied in an October 1995 rating decision because the Veteran's income was found to exceed the amount allowed by statute. The Veteran was notified of this decision and informed of his appellate rights in an October 1995 letter. He did not appeal the decision and therefore it became final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2010).
The Veteran did not apply for NSC pension benefits again until October 18, 2004, which is the date the Veteran's claim was received by VA. The March 2005 rating decision granting NSC pension benefits assigned an effective date of October 18, 2004, the date of the Veteran's claim.
The Board finds that the effective date of October 18, 2004 for entitlement to NSC pension benefits was proper. After the October 1995 rating decision was rendered, there is no indication in the claims file that the Veteran again applied for NSC pension benefits, either formally or informally, until October 18, 2004. The Veteran has not argued that he was incapable of submitting a claim for pension benefits prior to October 18, 2004. 38 C.F.R. § 3.400(b)(1)(ii)(B). There is also no evidence of record showing that the Veteran underwent a period of extensive hospitalization or otherwise suggesting that he was incapable of submitting a claim for NSC pension benefits prior to October 18, 2004. See id. Moreover, the Veteran has not argued that there was CUE in the October 1995 rating decision. See Cook, 318 F.3d at 1339. There is no other basis upon which to grant an earlier effective date.
As such, the proper effective date of NSC pension benefits is October 18, 2004, the date of receipt of the Veteran's new claim. See 38 C.F.R. § 3.400(b),(q)(2). See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2).
Accordingly, the Board finds that the preponderance of the evidence is against entitlement to an earlier effective date. Consequently, the benefit-of-the-doubt rule does not apply, and an effective date earlier than October 18, 2004 for the award of NSC pension benefits must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.
IV. Petition to Reopen
The Veteran initially filed for service connection for radiation exposure in May 1995. The RO denied the claim in an October 1995 rating decision. The Veteran was notified of this decision and informed of his appellate rights in an October 1995 letter. The Veteran submitted a notice of disagreement (NOD) in response to this decision and a January 1996 statement of the case (SOC) and March 1996 supplemental statement of the case (SSOC) were duly issued. See 38 C.F.R. § 19.29 (2010). However, the Veteran did not perfect his appeal by filing a substantive appeal (VA Form 9). See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2010). Therefore, the October 1995 rating decision denying service connection for "radiation exposure" became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.
Notwithstanding the decision of the RO to reopen a claim that has been previously adjudicated, the Board must determine independently whether new and material evidence has been presented to reopen the claim as a jurisdictional matter. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).
Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id.
The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. See Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for the claimed disorder, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).
The Veteran's claim for service connection for radiation exposure was denied in the October 1995 rating decision because the RO found that radiation exposure is not in itself a disability for which service connection can be granted. At the time of this rating decision, the evidence of record included the Veteran's service treatment records, including a Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) and post-service VA treatment records. The Board notes that the Veteran submitted this form again in connection with the current claim. However, it does not constitute new evidence as it was already of record at the time of the October 1995 rating decision. See 38 C.F.R. § 3.156.
The Board finds that new and material evidence has not been submitted to reopen this claim. In the first place, as found by the RO, exposure to radiation is not itself a disability for which service connection can be granted. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (finding that, based on the definition found in 38 C.F.R. § 4.1 (2010), the term disability "should be construed to refer to impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself"); see also 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Although the Veteran has generally claimed "damage to his body" as a result of alleged radiation exposure during service, he has failed to specify which body part or system he believes was affected by the alleged radiation exposure. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that in order for a claimant to adequately identify the benefit sought, the claimant must describe the nature of the disability for which he was seeking benefits; this may be satisfied by referring to a body part or system that is disabled, or by describing the symptoms of that disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Boggs v. Peake, 520 F.3d 1330 (2008) (the factual basis of a claim for service connection is the Veteran's disease or injury, rather than the symptoms of the disease or injury).
The Board notes that in his October 2004 claim, the Veteran stated that he was sterile and that his "bones were falling apart." Claims of service connection for sterility and a "bone condition" were separately denied in the March 2005 rating decision and the Veteran did not appeal these denials. He only appealed the denial of exposure to radiation, stating in the October 2005 NOD that he had "damage to his body" as a result of such alleged exposure. The Veteran has not claimed that he has a bone condition or sterility as a result of alleged exposure to radiation. Thus, the Board finds that the Veteran has not adequately identified the benefit sought. See id. Thus, in short, the Board finds that the Veteran has not submitted a valid claim of entitlement to service connection. See id.
Further, the Board finds that new and material evidence has not been submitted. In this regard, service connection for conditions claimed to be due to exposure to radiation in service can be established in any of three different ways, as outlined by the Court. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, supra; see also Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd, 120 F.3d. 1239 (Fed. Cir. 1997).
With respect to the first approach, VA has identified certain diseases that are presumed to be the result of radiation exposure if it is established that the Veteran was "a radiation-exposed veteran." 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Under 38 C.F.R. § 3.309(d)(1), the diseases specific to radiation-exposed veterans consist of a number of forms of cancer. No other disease or condition is included in § 3.309(d)(1).
Under the second approach, for claims based on exposure to ionizing radiation, if the veteran is found to have a radiogenic disease under 38 C.F.R. § 3.311(b)(2), further development is warranted under the special framework set forth in 38 C.F.R. § 3.311 to determine on a direct basis whether the disease was caused by ionizing radiation exposure in service. The list of radiogenic diseases consists of a number of specified forms of cancer, and posterior subcapsular cataracts. See 38 C.F.R. § 3.311(b)(2). The list also states that any other cancer is considered a radiogenic disease. Id. With certain exceptions, most radiogenic diseases must become manifest 5 years or more after the alleged exposure. See id.
Finally, under the third approach, the Veteran may still prove on a direct basis that he has a disease resulting from radiation or any other in-service disease, injury, or event. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service.
Here, the Veteran has not submitted any new evidence suggesting that he was a "radiation-exposed veteran," that he has one of the radiogenic diseases set forth in 38 C.F.R. § 3.311(b)(2), or that he has a current disability resulting from radiation exposure. As discussed above, the Veteran has not specified which body part or system he believes was affected by the alleged radiation exposure and thus has failed to state a claim. See Brokowski, supra. The Veteran's general allegation that he has a disability caused by in-service radiation exposure was already of record at the time of the October 1995 rating decision and thus does not constitute new evidence.
As such, the Board finds that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for radiation exposure. Therefore, the petition to reopen must be denied. See 38 C.F.R. § 3.156(a).
ORDER
Entitlement to an effective date earlier than October 18, 2004 for the grant of entitlement to nonservice-connected (NSC) pension benefits is denied.
New and material evidence has not been received to reopen the claim of entitlement to service connection for radiation exposure; the petition to reopen is denied.
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K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs